Usage Rule Might Not Apply Here; Lawyer Disputes 'Access'

Usage Rule Might Not Apply Here; Lawyer Disputes 'Access'

Article excerpt

Byline: Drew Dixon, Shorelines staff writer

One element in the battle over beach access in Ponte Vedra Beach may turn out to be irrelevant, but the fight will continue.

The Jacksonville chapter of the Surfrider Foundation has been arguing that St. Johns County's attempt to vacate 34 feet of right of way along the western edge of Ponte Vedra Boulevard near 14 public beach accesses violates the public trust doctrine, a federal mandate designed to secure all residents' rights to use beaches.

But Bud Vielhauer, deputy general counsel for the Florida Department of Environmental Protection, said this week, "The public trust doctrine is not applicable to this case.

Vielhauer acknowledged he hasn't examined the Ponte Vedra Boulevard case in depth, but he said DEP officials have been discussing the issue and there appears to be no link to the doctrine.

The Ponte Vedra Beach Zoning and Adjustment Board unanimously recommended Monday to the County Commission that 7,000 feet of rights of way along Ponte Vedra Boulevard should be vacated and given to private landowners.

The public trust doctrine is enforced in Florida by the state DEP. The County Commission is likely to vote on the land giveaway within a month.

Scott Shine, chairman of the Surfrider chapter, said the opinion from Vielhauer is baseless.

"He just said it doesn't apply," Shine said. "He's not giving any kind of case law or rationale of law to substantiate that.

"This is one point, and there are so many other legal points to this. There is a huge misconception among the people [who] live along the boulevard that the beach belongs to them and that it can be made private. You first have to define the beach belongs to the public and that is why we have referenced the public trust doctrine."

But Vielhauer doesn't believe the issues of rights of way or their impact on access have anything to do with the public trust doctrine.

"It's not a real issue of access to the beach. It's once you get on the beach, you have the right to use the beach," Vielhauer said. "Under the Florida Constitution, all lands acquired at the time of statehood below the mean high-water mark belong to the citizens of Florida. That is what in effect the public trust doctrine is."

But Shine maintains the Ponte Vedra Beach case will set a precedent and the public trust doctrine eventually will be shown to apply. …